A manager at a McDonald’s franchise tried to ‘negotiate’ with disgruntled workers on Facebook, and his post went viral. Here’s a breakdown from an HR perspective.

A snapshot of a post from a McDonald’s franchise manager, in which he threatens workers with restricted water and toilet breaks, has gone viral. The post is a case study in what not to do when speaking to employees in your organisation during the middle of enterprise bargaining.

It was written at the same time as the Retail and Fast Food Workers’ Union (RAFFWU) and the Shop Distributive and Allied Employees Association are seeking leverage with McDonald’s in a deal that’s expected to restore full penalty rates (paywall). The post was specifically a reaction to arguments from the RAFFWU that McDonald’s and its franchises are not giving staff their mandated breaks under the current EBA – ten minutes for shifts of four hours or more.

The franchise manager is from Tantex Holdings, a Queensland company that owns McDonald’s franchises. He posted into a private Facebook page and essentially warned his workers that if they wanted to access their legal entitlement of 10 minute breaks, then this break would be their only opportunity to drink water and go to the toilet.

“What this means is that if we implement this over our current situation, on your shift – this 10 minute break would be the only time you would ever be permitted to have a drink or go to the toilet. So I hope to god you don’t get thirsty on your next shift because we just wouldn’t be able to allow a drink. Fair is Fair right?

“Are we really such bad guys?” the post continues, “It actually works better in our favour to follow this legislation and keep you all working non-stop.”

Whether or not they really are bad guys, the RAFFWU denounced the manager’s words, and about 50 members protested outside the Tantex Holdings store the manager worked at. A McDonald’s spokeswoman (who also didn’t weigh in on whether they were bad guys) told the Sydney Morning Herald that everyone working at McDonald’s were given breaks as required by the law.

Referring to the ongoing negotiations, the spokeswoman said the franchisor intends to “create the best possible agreement”.

“This means we’re exploring a range of terms including penalty rates, guaranteed hours for part-time employees and additional leave entitlements.”

What the law says

Since the current EBA outlines a mandated break period, the manager can’t propose other arrangements in substitution of workers’ entitlements, says Alan McDonald, managing director of McDonald Murholme law firm. So this may have been a breach of section 50 of the Fair Work Act.

“Tantex may have also breached section 345(1) of the Fair Work Act 2009 by knowingly or recklessly making a false or misleading representation about workers’ rights to a paid 10-minute break… [it] may also have breached section 340(1) if it can be established that the worker’s right to a paid 10-minute break, or exercise of that right, was a substantial or operative reason for the adverse action.”

Interestingly, says McDonald, if the manager had acted on his threat of preventing breaks, he could have run afoul of health and safety legislation.

“State workplace health and safety laws typically require that employers provide workers with a working environment that is safe and without risks to health. Preventing employees from using the restroom or from drinking water outside of their paid break times creates a plethora of health risks… and therefore could breach both of the above obligations.”

With regards to franchisor responsibility, McDonald’s could potentially be liable if Tantex Holdings was found guilty of breaching section 50 but not the other alleged contraventions.

For that first breach “liability as franchisor will only be found if McDonald’s knew, or could reasonably be expected to have known, that Tantex may have breached the Enterprise Agreement and failed to take reasonable steps to prevent this from happening,” says McDonald.

When a manager speaks out

What should HR do if it’s faced with a manager potentially threatening workers and misrepresenting their rights in social media outbursts?

The immediate impulse might be to fire him on the spot. Aaron Goonrey, partner at Lander & Rogers’ Workplace Relations & Safety practice, has previously written about firing someone without notice for HRM.

He recommends that you ask yourself several questions before doing so; including was the misconduct wilful or deliberate? Did the misconduct cause a serious and imminent risk to the reputation, viability, or profitability of the business? And has the misconduct permanently destroyed the relationship of trust and confidence between the employer and employee?

You could make a solid argument that in this case the answer is a firm ‘yes’ to all three. “[But] as tempting as it might be to shortcut the dismissal process, it can ultimately lead to more time and money being expended if the dismissal is litigated,” says Goonrey.

So if dismissing the employee seems like the right move, it’s better to approach it in a more measured way.

It’s also worth making sure you have a robust social media policy, outlining what can and cannot be said online about your organisation – though you’d be forgiven for not having a provision specifically dealing with this situation in there. Before this month, who would think a manager inserting themselves into an industrial relations issue by threatening toilet rights was going to make national news?